Obesity remains a serious health problem and it is no secret that many people want to lose weight. Behavioral economists typically argue that “nudges” help individuals with various decisionmaking flaws to live longer, healthier, and better lives. In an article in the new issue of Regulation, Michael L. Marlow discusses how nudging by government differs from nudging by markets, and explains why market nudging is the more promising avenue for helping citizens to lose weight.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

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The Supreme Court heard oral argument yesterday in Florida v. Jardines, a case that examined whether bringing a drug-sniffing dog to the front door of a home looking for drugs was a Fourth Amendment search.

Having attended the oral argument (transcript; audio forthcoming), my sense is that a majority on the Court thinks dog-sniffs at front doors (absent a warrant) go too far. But few of the justices know why. The one who does is Justice Kagan.

What rationale might the Court use to decide the case? Even after United States v. Jonesthrew open Fourth Amendment doctrine, the instinct for using “reasonable expectation of privacy” analysis is strong. (I’ve joked that many lawyers think the word “privacy” can’t be uttered without the prefix “reasonable expectation of.”) This is where much of the discussion focused, and Justice Breyer seemed the most firmly committed to its use.

But the insufficiency of “reasonable expectation” doctrine for providing a decision rule was apparent when Breyer teed up Jardines’s counsel to knock the case out of the park. There was much discussion of what one reasonably expects at the front door of a home. Neighbors may come up. Trick-or-treaters may come up. Neighbors may come up with their dogs. The police may come to the door for a “knock and talk.” Neighbors, trick-or-treaters, dogs, and police officers may all come up and discover odors coming from the house. What makes the drug-sniffing dog unexpected?, Justice Breyer asked:

Do in fact policemen, like other people, come up and breathe? Yes. Do we expect it? Yes, we expect people to come up and breathe. But do we expect them to do what happened here? And at that point, I get into the question: What happened here?

Joelis Jardines’s counsel could not say what made the dog unexpected.

Perhaps property law draws the line that excludes government agents with drug-sniffing dogs, while allowing other visitors to come to the door. Not so. Justice Alito in particular pressed Jardines’s counsel for any case that had excluded dogs (drug-sniffing or otherwise) from the implied consent one gives to visitors on the walk and at the front door. The argument is unavailing, this idea that Florida’s property law (put into play by the majority holding in Jones, which relied on property rights) solve this case. Florida property law doesn’t exclude dogs from the implied permission it gives to lawful visitors on residential property.

None of this is to say that the government had it easy. Florida’s counsel had uttered just three sentences when Justice Kennedy informed him that the rule from Illinois v. Caballes would not carry the day. In Caballes, the Court found there to be no search at all when government agents walked a drug-sniffing dog around a car stopped for other reasons. (I attacked what I called the “Jacobsen/Caballes corollary” to the Katz decision in the Cato Institute’s brief to the Court, and also in this Jurist commentary.)

It won’t be the rule from Caballes. So what is the rationale that decides this case?

Justice Scalia was on the scent when he reasoned with the government’s counsel about what might be done with binoculars.

“As I understand the law,” he said, “the police are entitled to use binoculars to look into the house if—if the residents leave the blinds open, right?”

Florida’s counsel agreed.

“But if they can’t see clearly enough from a distance, they’re not entitled to go onto the curtilage of the house, inside the gate, and use the binoculars from that vantage point, are they?”

“They’re not, Your Honor.”

“Why isn’t it the same thing with the dog?”

Justice Kagan knows that it is. And she used Justice Scalia’s reasoning in Kyllo v. United States, the precedent that is on all fours with this case.

She recited from Kyllo: “ ‘We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where, as here, the technology in question is not in general public use.’” And she asked Florida’s counsel, “[W]hat part of that language does not apply in this case?”

“Franky’s nose is not technology,” he replied, referring to the dog. “It’s—he’s using—he’s availing himself of God-given senses in the way that dogs have helped mankind for centuries.”

The existence of dogs in human society for centuries might help the government if dogs had been used for drug-detection all this time. And then only if the question was what it is reasonable to expect.

What matters is that a drug-sniffing dog is indeed a form of sense-enhancing technology. Selected for its strong sense of smell, and trained to convey when particular odors are present, a drug-sniffing dog makes perceptible to law enforcement what is otherwise imperceptible.

And that is the very definition of searching. At least as Black’s Law Dictionary has it: “‘Search’ consists of looking for or seeking out that which is otherwise concealed from view.”

Police officers use dogs to search for drugs and other materials in which they are interested but which they cannot see by themselves. A drug-sniffing dog is a cuddly chromatograph.

And just now, quietly, you have seen at work the rationale that the Supreme Court should use to decide Florida v. Jardines. Was it a search to bring a drug-sniffing dog to the front door of a house? The Court should apply the plain meaning of the word “search” to the facts of the case that has come before it. There’s no need for doctrine at all.

Prior to the development of trade and commerce, movable property was “not esteemed of so high a nature, nor paid so much regard to by the law,” Blackstone tells us in his commentaries on the laws of England. Such property in transit was routinely confiscated by authorities or tariffed at exorbitant rates.

When commercial relations expanded, the quantity and value of personal property increased, and the law “learned to conceive different ideas of it.” Legal protection for movable property increased.

In parallel to the growth of commerce in movables centuries ago, commerce in information is on the rise today. It may be time to “conceive different ideas of it” as well—different ideas that accord information similar protection. This is what a group of amici have encouraged the Supreme Court to do in a brief on an important privacy case being argued this week.

In Clapper v. Amnesty International, the Gun Owners Foundation, Gun Owners of America, Inc., the U.S. Justice Foundation, the Downsize D.C. Foundation, DownsizeDC.org, and the Conservative Legal Defense and Education Fund have argued that the Court should recognize a property interest in confidential communications. Doing so would more clearly establish the standing of the respondents in this case to challenge the global wiretapping program Congress established in the FISA Amendments Act of 2008.

William J. Olson, lead counsel on the brief, articulated the issues well in an email distributing it:

Our amicus brief in the Clapper case extrapolates from the court’s holding in Jones and identifies the property interests at stake in this case as confidential communications that are critical to the practice of law and of the enterprise of journalism. Using a property analysis, the citizens in Clapper have a protectable property interest in their electronic communications as they do in their written communications. Thus, even though plaintiffs are not “targeted” by the Government, the Government’s contention that their search and seizure of plaintiffs’ communications is only “incidental” is unavailing.

Jones v. United States, of course, is the case decided in January, in which government agents tracked a suspect’s car for four weeks using a GPS device without a valid warrant. The Supreme Court found unanimously that this violated the Fourth Amendment. My article in the most recent Cato Supreme Court Review (2011-12) analyzes the case, and you can get a taste of that analysis in the most recent Cato Policy Report (September/October 2012).

I also discussed the Fourth Amendment status of communications in the Cato Institute’s brief in Florida v. Jardines, which is also being argued in the Supreme Court this week. The Court found Fourth Amendment protection for postal mail in an 1877 case, but stumbled when faced with the next iteration of communications technology.

In the year this Court decided Ex Parte Jackson, both Western Union and the Bell Company began establishing voice telephone services. Gerald W. Brock, The Second Information Revolution 28 (Harvard University Press, 2003). Now, instead of written messages in the post, representations of the human voice itself began moving across distance, at light speed, in a way few people understood. This is the technology this Court confronted in Olmstead v. United States, 277 U.S. 438 (1928).

The Court handled this technological development poorly. Chief Justice William Taft fixed woodenly on the material things listed in the Fourth Amendment’s search and seizure clause. Wiretapping had not affected any of the defendants’ tangible possessions, he found, so it had not affected their Fourth Amendment rights. Olmstead, 277 U.S. at 464. In dissent Justice Butler noted how “contracts between telephone companies and users contemplate the private use” of telephone facilities. “The communications belong to the parties between whom they pass,” he said. Olmstead, 277 U.S. at 487 (Butler, J., dissenting). Cf. Ex Parte Jackson, 96 U.S. 727 (1877) (“Letters and sealed packages … are as fully guarded from examination and inspection … as if they were retained by the parties forwarding them in their own domiciles.”).

Florida v. Jardines is not a communications case. The issue is whether the sniff of a trained narcotics-detection dog at the front door of a house is a Fourth Amendment search requiring probable cause. Cato’s brief invites the Court to dispense with the unworkable “reasonable expectation of privacy” test, using the plain meaning of “search” instead.

Black’s law dictionary defines “search” as “looking for or seeking out that which is otherwise concealed from view.” Smells that only trained dogs can detect are indeed otherwise concealed from humans.

Familiar though ordinary pet dogs are, a trained dog is a chromatograph. The Court should follow the Fourth Amendment’s language and precedents like Kyllo v. United States to find that a drug-dog’s sniff is a search.

A companion to Jardines, Florida v. Harris, is being argued the same day. That case will examine the sufficiency of drug-dogs as evidence of wrongdoing, an issue that has not received careful examination in the past.

So it’s a big week for the Fourth Amendment in the Supreme Court. Stay tuned for developments.

I was interested by the title of a paper called “Behavioral Advertising: The Offer You Cannot Refuse” by a small coterie of privacy activist/researchers. I love the Godfather movies, in which the statement, “I’m going to make him an offer he can’t refuse,” is a coolly tuxedoed plan to threaten someone with violence or death. I don’t love the paper’s attempt to show that government “interventions” are superior to markets in terms of freedom.

What was most interesting, though, was the paper’s unspoken battle with lock-in, or path dependence. That’s the idea in technology development that a given state of affairs perpetuates itself due to the costs of changing course.

The QWERTY keyboard is a famous example of lock-in. The story with QWERTY is that keys on early mechanical typewriters were arranged so that commonly used letters wouldn’t strike one another and jam together. The result was an inefficient arrangement of keys for the fingers, but it’s an arrangement that has stuck.

The reason why it has stuck is because of switching costs. Everybody who knows how to type knows how to type on a QWERTY keyboard. If you wanted to change to a more efficient keyboard, you’d have to change every keyboard and everyone’s training. That’s a huge cost to pay in exchange for a modest increase in efficiency. So we’ve got QWERTY.

Since as close to the beginning as I know of, Web browsers have been designed to store information delivered by Web sites and to return it to those sites. Cookies are the best known form of this, tiny files that allow a Web site to recognize the browser (inferentially, the user) and deliver custom content. There are also “Flash cookies,” more accurately called “local shared objects,” which can store information about users’ preferences, such as volume settings for Internet videos. Flash cookies can also be used to store unique identifiers to use in tracking. These things provide value to Internet users, and most Web sites make use of them to deliver better content.

The authors of the paper don’t like that. The path of Web browsing technology is not privacy protective, and they would call on regulators to fix that with a pair of interventions: preventing Flash cookies from “respawning” cookies (that is, recreating them when they have been deleted) and regulation of consumer-data markets to prevent marketers from learning information about consumers. This would uphold consumer choice, they argue. And they argue dubiously that their work “inverts the assumption that privacy interventions are paternalistic while market approaches promote freedom.”

Now, ask yourself: If the government came in and required everyone to train for and use the more efficient Dvorak keyboard, would that be a paternalistic step? The end result would be more efficient typing.

Of course it would be paternalistic.

So let’s be frank. This is an argument for paternalistic intervention, attempting to allay the authors’ concern about what a favorite technology of Internet users is doing to privacy.

The good news is that there is far less lock-in in the Internet browser area than in keyboards. Technologists can and do build browser modifications that prevent tracking of the type this article is concerned with.

Their real problem is that few people actually care as much as the authors do about whether or not they receive tailored advertisements. Few people want to use a browser that is essentially crippled to gain a sliver of privacy protection to which they are indifferent.

Paternalist? It sure is. And unlike a paternally driven switch to a better keyboard, this policy wouldn’t obviously make consumers better off.

A person’s home is his castle and thus affords certain protections and immunities — including the right to exclude unwanted visitors — that apply whether you own or rent.

Unfortunately, ordinances authorizing general administrative searches of rental properties have been increasingly adopted by local authorities with little protection for privacy interests. These inspections reach the whole of the buildings and all of the activity that occurs within, opening up every aspect of people’s lives to the government: political and religious affiliations, intimate relationships, and even all those Justin Bieber posters and Fifty Shades of Gray books you hide when people come over.

For the past five years, the city of Red Wing, Minnesota, has been enforcing such a rental property inspection program whereby landlords and tenants must routinely open their doors to government agents. These searches take place even if both the landlord and tenant believe it not to be necessary. The owner of the property even has to pay a fee for the unwanted search to receive a rental license!

The city sometimes makes initial requests for consent, but these are mere courtesy because the city proceeds with an administrative warrant in the event of a refusal — without a showing of probable cause to believe there’s a housing code violation or other problem. The inspection ordinance doesn’t even attempt to prevent the disclosure of information revealed during the search; the whole neighborhood may find out that you have five different facial cleansers and an unusual amount of apple sauce.

A group of landlords and tenants have thus challenged the inspection program, arguing that several alternatives are available to meet what legitimate interests local governments have. They successfully opposed three applications made for administrative warrants and now seek a court order that the rental inspection ordinance is unconstitutional.

Unfortunately, the U.S. Supreme Court has read the Fourth and Fourteenth Amendments as not prohibiting such legislation, but of course states are free to offer more protection for individual rights. The Red Wing plaintiffs have thus invoked Article I, Section 10 of the Minnesota Constitution, which contains language similar to the federal Fourth Amendment.

Cato has joined the Reason Foundation, Libertarian Law Council, Minnesota Free Market Institute at the Center of the American Experiment, and Electronic Frontier Foundation in filing an amicus brief urging the Minnesota Supreme Court to take the Red Wing case and confirm that no Minnesotan should be subjected to an intrusive invasion of privacy when there has been no showing of some cognizable public health or safety issue within the home subject to inspection.

The Minnesota Supreme Court should be the first to decide that its state’s constitution provides greater protections against warrantless home inspections than even the Fourth Amendment (as construed by the U.S. Supreme Court). No other state judiciary has substantively ruled on constitutional protections against administrative searches in residential contexts, so this case presents an opportunity to set a benchmark for liberty.

The Minnesota Supreme Court will decide whether to take the case of McCaughtrey v. City of Red Winglater this fall.

For more than two years, the police in San Leandro, Calif., photographed Mike Katz-Lacabe’s Toyota Tercel almost weekly. They have shots of it cruising along Estudillo Avenue near the library, parked at his friend’s house and near a coffee shop he likes. In one case, they snapped a photo of him and his two daughters getting out of a car in his driveway. Mr. Katz-Lacabe isn’t charged with, or suspected of, any crime. Local police are tracking his vehicle automatically, using cameras mounted on a patrol car that record every nearby vehicle—license plate, time and location.

It was a little odd at the time, and still is, to talk about the privacy problem with license plates. But the emerging technology environment makes it essential to analyze and assess more carefully the information and identification demands that the government places on us.

[T]he requirement in all fifty states that cars must exhibit license plates linked to their owners is “anti-privacy” law, as would be a law requiring people to wear name tags in order to walk on public sidewalks. Mandatory license plates prevent citizens from exhibiting the expectation of privacy that Justice Harlan wrote about in Katz. Roughly speaking, they require people to expose their identities to police as a condition of driving on our roadways.

It is possible to think systematically about privacy. Privacy is not just a morass of feelings about advancing technologies. Once one understands privacy (in its strongest sense) as the exercise of power to control information about oneself, one can see a decade ahead that license plates create privacy problems.

Could the signaling be more incoherent? The hearing suggests both that unknown horrors loom and that we should shrink the most visible federal security agency.

Lace up your shoes, America—we’re goin’ swimmin’!

Our federal politicians still can’t bring themselves to acknowledge that terrorism is a far smaller threat than we believed in the aftermath of the September 11, 2001, attacks, and that the threat has waned since then. (The risk of attack will never be zero, but terrorism is far down on the list of dangers Americans face.)

The good news is that the public’s loathing for the TSA is just as persistent as stated terrorism fears. This at least constrains congressional leaders to do make gestures toward controlling the TSA. Perhaps we’ll get a “smarter, leaner” overreaction to fear.

Public opprobrium is a constraint on the growth and intrusiveness of the TSA, so I was delighted to see a new project from the folks at We Won’t Fly. Their new project highlights the fact that the TSA has still failed to begin the process for taking public comments on the policy of using Advanced Imaging Technology (strip-search machines) at U.S. airports, even though the D.C. Circuit Court of Appeals ordered it more than a year ago.

The project is called TSAComment.com, and they’re collecting comments because the TSA won’t.

The purpose of TSAComment.com is to give a voice to everyone the TSA would like to silence. There are many legitimate health, privacy and security-related concerns with the TSA’s adoption of body scanning technology in US airports. The TSA deployed these expensive machines without holding a mandatory public review period. Even now they resist court orders to take public comments.

TSAComment.com has gotten nearly 100 comments since the site went up late yesterday, and they’re going to deliver those comments to TSA administrator John Pistole, Homeland Security secretary Janet Napolitano, and the media.

The D.C. Circuit Court did require TSA to explain why it has not carried out a notice-and-comment rulemaking on the strip-search machine policy, and assumedly it will rule before too long.

Getting the TSA to act within the law is important not only because it is essential to have the rule of law, but because the legal procedures TSA is required to follow will require it to balance the costs and benefits of its security measures articulately and carefully. Which is to say that security policy will be removed somewhat from the political realm and our incoherent politicians and moved more toward the more rational, deliberative worlds of law and risk management.

Hope springs eternal, anyway…

There could be no better tribute to the victims of 9/11 than by continuing to live free in our great country. I won’t shrink from that goal. The people at TSAComment do not shrink from that goal. And hopefully you won’t either.

The other day, I was asked to review a draft slate of pro-innovation proposals that might be put before the next presidential administration (regardless of who heads it). I went down the list, typing again and again, “Education policy is not a federal role.”

The rather amateurish list was packed with ideas for injecting book-learnin’ into our economy. It betrayed little awareness of how our constitutional republic is structured, including the absence of federal authority over education. I guess some books are better than others…

It occurred to me as I typed that people coming after me to look over the innovation proposals might think I was an idiot.

“Look right there! There is a federal Education Department. Don’t deny it!” they might say.

When I say education policy is not a federal role, I am saying something normative, about how things should be. As a present-day literal matter, there is rather obviously a federal role in education. And the sooner we restore authority to localities and especially parents, the better.

That how-things-could-be lens, though, is how to look at a self-described “thought experiment” on Slate called “Let’s Nationalize Facebook.”

It would be better to have a national privacy commissioner with real authority, some stringent privacy standards set at the federal level, and programs for making good use of some of the socially valuable data mining that firms like Facebook do. … Facebook would have to rise to First Amendment standards rather than their own terms of service. The company could be regulated the way public utilities often are.

Were Facebook nationalized, its privacy problems would not evaporate. They would double. The obscure (and, for some, concerning) uses Facebook makes of data in commerce would be joined by secret uses of data and equivocal denials by military spymasters.

Public utility regulation of social media has already been made mincemeat. Nationalizing Facebook is indeed a nonstarter.

“If only we elected the right people,” our friends on the left seem to think, “things would be better. If only our elected officials dedicated their lives to careful balancing of our precious American values, if we got a realregulator in there, if only they didn’t come under outside pressure…” If only, if only, if only.

It is quite conceivable to have some wise and neutral authority make better decisions about how every organ of society might operate. I think this dream is what brings our friends on the left to believe so strongly in increasing government control over society.

The thing is, it is quite impossible for that wise and neutral authority ever to exist.

We can go to the aphorisms—“Power tends to corrupt, and absolute power corrupts absolutely”; we can go to school: the public choice school of economics, specifically; or we can go to the lessons of history to show that there is not a beneficent government in the kitchen, lovingly brewing coffee for you, when you wake from your ‘democratic’ dream.

My dream of having education policy restored to its rightful place with localities and families is more likely—well, I’ll put it this way—less unlikely than a powerful, all-seeing, yet benign central government.